Ferre v. Doty

Turner, J. pronounced the opinion of the Court. — This is an action of trespass brought for continuing and occupying a shed on the common, in front of the plaintiff’s land. The main question raised by the counsel is, whether the plaintiff has a right in the premises, sufficient to support the action. It is admitted that the common was laid out, and set apart, for certain public purpose s, by a vote of the proprietors, previous to making the 4th division, which consists of one-acre lots, laid out around the common : one of which the plaintiff owns, and claims, as appurtenant thereto, a share of the fee of the common, embracing the land on which the trespass is alleged to have been committed. The plaintiff compares the common to a highway, and insists that the fee of the land is in the adjoining proprietors. This we admit to bo true with certain exceptions $ to understand which, it will be ne [382] cessary to enter into an investigation of the law concerning highways. The term highway means nothing more than an easement, or .a right of way over the land of another, and cannot mean a right of passage over one’s own land. Whenever a highway is laid out over the land of another, the owner does not thereby lose the fee of the land, but retains it subject to the easement of the public. When a new highway becomes necessary, an easement or right of way is all the public have a right,in justice,to demand;and so much the oiwn-of the soil is bound to yield upon a fair equivalent. When the original proprietors of townships have laid out highways, they ¡have undoubtedly supposed that it implied only a right of passage common to all. And it is clear, that by the rule of the common law, the freehold of the soil was in the lord of the manor, or in th.e owner of the land on each side. As the fee of the land is not changed by laying out or granting a highway, it must necessarily fol-r low that it remains in the original proprietors, and will pass with their conveyances to subsequent purchasers, although covered by a highway. And the true rule to find where the fee of the land is, is to find the exact boundaries in the deed, as no one has the right of soil in more than is included within his boundaries. The common law presumes, that he who owns land adjoining owns the fee of the highway, on the ground, that it supposes it included within his boundaries,and¡that he who owns on one side owns to .the centre for the same reason. The exceptions to these presumptions are clearly and ably illustrated by Judge Edmond, in the case of Peck vs. Smith, 1 Con. R. 127, where he says, for example, “ A owns a piece of land ; a highway is laid across the mid-u die ofit: the fee remains in A. Again, A and B own lands adjoining ; a highway is laid wholly on A’s land, but bounding on “ the land of B. Here it is clear that the fee of the way re- “ mains in A, as much as in the first case; for laying a highway on the land of A, cannot transfer any part of the fee to B, although by the laying out of the road, B has become an <{ adjoining proprietor. Again, A owns land ; B owns land adjoining on each side of it; the whole of the land of A is laid u out for a road. Will it be said in such a case that the fee is “ transferred from A to B ?” And he goes on to remark, that “ proof of fuch a set of facts in respect to the laying out of the “ road, and the circumstances of ownership continuing the same as “ at the time of the laying out, rebuts and oversets entirely the “ presumption that the road was originally laid out on B’s land, “ or the land of those under whom he claims. The same proof i( equally excludes the supposition that when B purchased his land, [383] “ the fee in the way accompanied and made part of his purchase, u because the fee was then in A exclusively ; no right of way ex- “ isted. The common law rule that the fee of the highway is in “ the owner of the adjoining land could not then apply.” jPhelps, for plaintiff. Bates, for defendant. From a careful examination of the authorities cited by the counsel, and from all the more modern decisions which we have been able to find, we are satisfied that these principles must con-troul the present case ; and that the plaintiff has neither the fee nor the possession of the land, on which the trespass is alleged to have been committed, not being covered by or within the boundaries of his deed. It is clear the action cannot be sustained. Judgement affirmed.